Guang Wu Chen v. Holder

11-5401 Chen v. Holder BIA Vomacka, IJ A094 793 710 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of June, two thousand thirteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 GUANG WU CHEN, AKA GUANWU CHEN, 14 Petitioner, 15 16 v. 11-5401 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; Stephen J. Flynn, 27 Assistant Director; Jeffrey R. 28 Meyer, Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Guang Wu Chen, a native and citizen of the People’s 6 Republic of China, seeks review of a December 6, 2011, 7 decision of the BIA affirming the July 8, 2010, decision of 8 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Guang 11 Wu Chen, No. A094 793 710 (B.I.A. Dec. 6, 2011), aff’g No. 12 A094 793 710 (Immig. Ct. N.Y. City July 8, 2010). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 20 562 F.3d 510, 513 (2d Cir. 2009). 21 For asylum applications, like Chen’s, governed by the 22 amendments made to the Immigration and Nationality Act by 23 the REAL ID Act of 2005, the agency may, considering the 2 1 totality of the circumstances, base a credibility finding on 2 an asylum applicant’s “demeanor, candor, or responsiveness,” 3 the plausibility of his account, and inconsistencies in his 4 statements, without regard to whether they go “to the heart 5 of the applicant’s claim.” See 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 7 167 (2d Cir. 2008). We will “defer to an IJ’s credibility 8 determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 11 In this case, the agency reasonably based its adverse 12 credibility determination on Chen’s inconsistencies, 13 implausibilities, demeanor, and lack of corroboration. 14 Chen testified in July 2010 that he had been attending 15 a Christian church in New York City once or twice a week 16 since February 2009, and had attended no other church in the 17 United States. However, in a sworn affidavit submitted to 18 the IJ, signed in April 2010, Chen indicated that he lived 19 and attended church in Phoenix, Arizona. When the IJ asked 20 Chen about this discrepancy, Chen stated that he “did not 21 hear very clearly.” Chen additionally testified that in 22 China, he began attending church in March 2007, was baptized 23 in August 2007, and received a baptismal certificate from 3 1 the church on the same day. However, the baptismal 2 certificate he submitted as evidence was issued in 2009 and 3 indicates that Chen began attending church in China in May 4 2007. When asked about this inconsistency, Chen failed to 5 explain the inconsistency, stating only that the baptismal 6 certificate he presented was the only one he had received. 7 In finding Chen not credible, the agency pointed to these 8 inconsistencies, and, after giving Chen an opportunity to 9 reconcile the discrepancies, reasonably rejected his 10 explanations. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. 11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 12 The adverse credibility determination is further 13 supported by the IJ’s implausibility and demeanor findings. 14 With respect to implausibility, the IJ found, and the BIA 15 agreed, that it was implausible that an underground church 16 in China would issue official documents, such as the 17 baptismal certificate, on church letterhead, or that after 18 Chen was detained and beaten for attending an underground 19 church, he would invite a village official’s son to attend 20 the church. Chen does not challenge these implausibility 21 findings other than to say the IJ failed to consider his 22 explanations. The agency reasonably based its adverse 23 credibility determination, in part, on these 4 1 implausibilities, see Wensheng Yan v. Mukasey, 509 F.3d 63, 2 67 (2d Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 3 168-69 (2d Cir. 2007), and Chen failed to explain why he 4 invited the village official’s son to his church and his 5 responses to questions about his church’s documentation were 6 themselves inconsistent. As to demeanor, the IJ noted that 7 Chen seemed “to be not entirely focused on his answers” and 8 seemed confused as to what documents were being discussed. 9 Because the IJ was in the best position to observe Chen’s 10 manner while testifying, we afford the demeanor finding 11 particular deference. See Majidi, 430 F.3d at 81 n.1. 12 Finally, the agency’s adverse credibility finding was 13 additionally based on Chen’s failure to provide 14 corroborative evidence of his arrest and detention in China. 15 The agency noted that Chen submitted a Notice of Summons 16 from the local Chinese security bureau, but concluded that 17 additional corroborative evidence, such as letters from 18 Chen’s relatives or church, was reasonably available and 19 would have bolstered his claim. Because the IJ had already 20 called Chen’s credibility into question due to his 21 inconsistencies, implausibilities, and demeanor, the agency 22 did not err in relying on the lack of corroboration as 23 further support for its adverse credibility determination. 24 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) 5 1 (“An applicant’s failure to corroborate . . . testimony may 2 bear on credibility, because the absence of corroboration in 3 general makes an applicant unable to rehabilitate testimony 4 that has already been called into question.”). 5 Given these multiple grounds, the totality of the 6 circumstances support the agency’s adverse credibility 7 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 8 Lin, 534 F.3d at 167. Accordingly, the agency did not err 9 in denying Chen asylum, withholding of removal, and CAT 10 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 11 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 6